Frank Groom Kirtz and Mary Jane Kirtz, Appellants, v. Blanton Wiggin; Erma Wiggin; Advanced Instruments, Inc., A.i. Company, Inc., A/k/a Advanced Instruments, Inc.and H T L Instruments, Inc., Appellees, 637 F.2d 572 (8th Cir. 1981)

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US Court of Appeals for the Eighth Circuit - 637 F.2d 572 (8th Cir. 1981) Submitted Oct. 16, 1980. Decided Feb. 5, 1981

Appeal from the United States District Court for the Eastern District of Missouri; John K. Regan, Senior Judge.

Joseph L. Badaracco, St. Louis, Mo., for plaintiffs-appellants.

Frank Groom Kirtz and Mary Jane Kirtz, pro se.

Mark D. Mittleman, St. Louis, Mo., for defendants-appellees.

Before HEANEY, ADAMS,*  and STEPHENSON, Circuit Judges.


This matter is before the Court for the second time. When it was first here, we considered the district court's dismissal of all of the counts of a thirteen-count complaint. We upheld the dismissal with respect to three of the thirteen counts but reinstated the remaining counts and remanded to the district court for further consideration. Kirtz v. Wiggin, 566 F.2d 1179 (8th Cir. 1977).

On remand, the complaint was again amended by the plaintiffs. The district court carefully considered the defendants' motion to dismiss the amended complaint of sixteen counts for failure to state a claim and for summary judgment. It held that judgment should be entered in favor of the defendants and against the plaintiffs on Counts 1 through 15, and that Count 16 should be stricken without prejudice.

During the course of oral argument and thereafter, this Court encouraged the parties to settle this lengthy litigation. It suggested that the matter might be resolved if the plaintiffs would pay a 1971 judgment against them, together with accrued interest thereon to the defendants and that, in turn, Advanced Instruments, Inc., a corporation controlled by the defendants, would pay a judgment against it in favor of the plaintiffs, together with the accrued interest thereon. The suggestion of the Court was accepted by the appellees and rejected by the appellants; thus, no settlement in the matter was achieved.

After oral argument and careful consideration of the records and briefs, we affirm the judgment of the district court on the basis of its well-reasoned opinion. Kirtz v. Wiggin, 483 F. Supp. 148 (D.E.D. Mo. 1980). Costs will be taxed to the appellants.


The HONORABLE ARLIN M. ADAMS, United States Circuit Judge for the Third Circuit Court of Appeals, sitting by designation